Statement of Use (SOU) in US Trademark Law

A Statement of Use or SOU is a formal declaration filed with the United States Patent and Trademark Office (USPTO) to show that you are actually using a trademark in U.S. commerce. It is only required when an application was filed on an intent-to-use basis Section 1(b) of the Lanham Act. Under U.S. law, if you filed a trademark application saying you intend to use the mark (but hadn’t started using it yet), you must later prove actual use to get the registration. The SOU is the document that does this. It includes evidence (a specimen) of real-world use of the mark and certain statements sworn under penalty of perjury. In other words, an SOU is essentially a signed statement plus sample labels or ads showing the mark on your goods/services, submitted after the USPTO says your mark is “allowed.”

Legal Provisions For Intent-to-Use (ITU) Applications

The SOU requirement arises from the Lanham Act (15 U.S.C.), which governs U.S. trademarks. The law allows applicants to file a trademark application even before using the mark in commerce, as long as they have a bona fide intent to use it in the near future. This is called an intent-to-use (ITU) application Section 1(b) of the Trademark Act. However, no trademark can register until actual use is shown. Specifically, within six months after the USPTO issues a Notice of Allowance (NOA), the applicant must file an SOU. The NOA is an official letter saying the mark is “allowed” after publication and opposition, and it starts the clock. The statute 15 U.S.C. §1051(d) requires the applicant to submit a verified statement and specimens showing use in commerce, with dates of first use, or else the application will be abandoned. In practice, this means:

• If filed under Section 1(a): the person already using the mark, and required to show use at the time of filing, and no SOU is needed.
• If filed under Section 1(b): (the person has the intent-to-use the mark, therefore the person must file an SOU after receiving the NOA to convert the application to use-in-commerce basis.

The SOU essentially converts your intent-to-use application into an actual-use registration, enabling issuance of the trademark registration certificate.

Who Must File The Statement of Use

Any applicant who filed an ITU application (no matter the applicant’s country) must file an SOU. The deadline is strict: within six months of the NOA date, unless extensions are obtained. The USPTO explains: “You must file a Statement of Use within six months after we issue a NOA (or within an extension period)”. In other words, once the NOA issues, the clock starts:

• First 6 months: You can file the SOU by itself.
• If you need more time: You can file up to five to six-month extensions (each requires a fee and a sworn statement of continued intent). This allows up to 36 months total from the NOA date.

During each extension, you still ultimately must file the SOU before time runs out. After all extensions (30-month extension beyond the initial 6 months), you have up to 36 months total from the NOA to file the SOU.

If you never file an SOU or extension in time, the application will be abandoned. This means the USPTO will cancel your ITU application and you forfeit the fees. You can sometimes petition to revive an abandoned ITU filing (if you can show a delay was unintentional), but this is limited. Thus, it is critical to calendar the NOA deadline and file by then.

How to File a Statement of Use

Filing an SOU is done online through the USPTO’s Trademark Electronic Application System (TEAS):

1. Compiling the evidence of use. You will need at least one specimen for each class of goods/services (e.g., a photo of the product label, packaging, or a screenshot of a webpage showing the mark in use). The specimen must show the actual mark as used with the goods/services in U.S. commerce (for example, on product packaging or an advertisement).
2. The dates must be on or before the filing date of the SOU from which the use of mark is shown.
3. Amendment of goods/services after NOA: If the mark is not used on all the originally listed goods, you can delete those unused items in the form via the post-allowance amendment options. This ensures you only claim use on goods/services where you have specimens.
4. Attaching the specimen: Upload one acceptable specimen file per class. Each specimen should clearly show the mark on the product or in marketing material. (For example, for goods: a picture of the product with your mark on it; for services: a screenshot of an ad or website about the service.) Screenshots of webpages must include the date and URL.
5. Complete the declaration: In the form you will need to fill in or check off the required statements. These include saying “I believe I am the owner of the mark,” confirming the mark is in use in commerce on all listed goods/services, and to the best of your knowledge no one else has rights to the mark (a summary of the TMEP declarations). The form will prompt you to provide the dates of first use and to upload your specimen files.
6. Fees: The filing fee for an SOU is $150 per class of goods/services. Also, each extension request (if filed, instead of the SOU) is $125 per class.
7. Review and submission: Double-check all information. The TEAS form usually cannot be saved indefinitely, so have everything ready before you start filling it out. Once you submit, you will get a confirmation with a serial number and can track it in TSDR.

Fees

• SOUs: $150 per class.
• Extensions (up to five): $125 per class each time.

All fees are in U.S. dollars, per class of goods/services. If you file an extension instead of the SOU, you still pay these class fees along with a statement of continued intent to use the mark. Fee payments are made through the USPTO’s Financial Manager when submitting the TEAS form.

Required Contents and Format

A complete SOU filing must include as per the USPTO rules:

• Filing fee: The SOU is accompanied with a fee of $150/class for SOUs.
• Specimen of use: one example showing the mark on or for the goods/services in use.
• Signed declaration: A verified statement under 37 C.F.R. 2.20, signed by the owner or an authorized person, declaring the mark is in use in commerce on the listed goods/services. This declaration includes the statement of first use dates and confirms no one else has the exclusive right to the mark.

It’s important that the specimens match the goods/services and clearly display the exact mark. The specimen cannot be just a future-use mockup; it must be actual use. For goods this means a label, tag, packaging, or product photo with the mark on it. For services, acceptable specimens include ads, brochures, or website printouts showing the mark used in selling or performing the service. Submit digital copies in the TEAS form.

Common Errors to Avoid

Mistakes in an SOU can cause refusals or abandonment. Common pitfalls include:

• Missing statements or data: Failing to include all required declarations like the “mark is in use in commerce” statement or dates from which the mark is used in commerce will get the SOU rejected.
• Specimen: The specimen must show the mark clearly and be an acceptable type. A blurry image, a photo of someone else’s webpage, or mere advertising copy without proof of an actual sale or shipment can be refused. For goods, the mark must appear on the goods/packaging itself or a display; just showing a mark in an advertisement without selling the product does not count.
• Incorrect owner name or signature: The declaration must be signed by the owner or someone with authority. An unsigned form or a wrong signatory will be rejected.
• Late filing: Filing even one day late (six months + extensions) can lead to abandonment.
• Form misuse: Make sure you use the correct TEAS form. Don’t file a general office-action response form by mistake; use the SOU form.

If the USPTO finds an issue, they will send an Office Action (refusal notice) with reasons. You cannot withdraw an SOU once filed and fees are nonrefundable, so it’s best to avoid errors upfront. If you receive an Office Action on your SOU, you may need to correct and resubmit before the deadline or risk abandonment.

Consequences of Not Filing

Failing to file a timely and acceptable SOU or extension request means your application will be abandoned. If abandonment occurs, you can petition to revive only within two months, and only if you can convince the USPTO the delay was unintentional. Otherwise you must start over with a new application.

On the flip side, once an SOU is successfully accepted, your mark will proceed to registration and be published in the Trademark Official Gazette. If all is in order, registration usually follows about 1–2 months after acceptance.

Sample Statement of Use (Template)

Below is a simplified example of the statements and content that an SOU might include. In practice you would fill out the official TEAS form, but this illustrates the required parts.

Applicant: ——–
Serial No.: ———-
Trademark: ———

I declare that I am the owner of the mark sought to be registered, and that to the best of my knowledge the mark is in use in commerce on or in connection with all the goods/services listed in the Notice of Allowance.  The mark first used on the goods (or in commerce) on [Date] (first use anywhere) and [Date] (first use in commerce). Attached is a specimen showing the mark as used in commerce (a photo of the product label). To the best of my knowledge, no other person has the right to use the mark in commerce in a way that would likely cause confusion. I verify that the foregoing is true and correct, and I am authorized to submit this statement under penalty of perjury.

Signature: ———

Date: ————

This template highlights key elements: identification of the applicant, declaration of use for all listed goods, dates of first use, a reference to the attached specimen, and a signed statement under penalty of perjury. The actual TEAS form will have you enter the dates, attach files, and electronically sign the declaration. The cited USPTO instructions confirm these requirements.

Foreign Applicants

If the applicant is not based in the U.S., special considerations apply:

• U.S. Attorney Required: By USPTO rule, any foreign-domiciled applicant (including Canadian) must be represented by a lawyer admitted to practice in the U.S. to file USPTO trademark documents. This includes filing the SOU. Plan to work with a qualified U.S. trademark attorney or agent.
• Show U.S. Commerce: Remember that “use in commerce” means use in U.S. commerce (including interstate or foreign commerce). Simply displaying your mark on a foreign website without actual U.S. sales or shipments does not count. If you sell through the Internet, the specimen should show a purchase mechanism or address indicating U.S. sales (e.g. a U.S. shipping option).
• Language and Currency: All filings must be in English, and fees in U.S. dollars.
• Alternative Basis: If you already own a foreign trademark registration, you might consider filing under Section 44(e) (foreign registration basis) instead; that route skips the SOU requirement and instead relies on your foreign registration. However, that has its own requirements and later maintenance filings.
• Plan for Extensions: Foreign businesses often need time to set up U.S. distributors or ad campaigns. You can file up to five six-month extensions, but you pay fees each time. Use them if you need more runway to begin actual use.
• Watch Deadlines Carefully: Time zones and weekends can be tricky. The official filing deadline is six months from the NOA date, so calculate this in advance (the extension windows are based on calendar dates, not filing date).

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